Delta ISB: We can’t get a straight answer on the legal basis for stopping the contracts

California Water Research has spent months trying to get a straight answer from the Delta Stewardship Council (DSC) Executive Director on the legal basis for stopping contracts for the Delta Independent Science Board (DISB.)

This is the history of our investigation.

1.  March 2021 We are told by DSC staff and others that the contracts were not approved by the Department of General Services because of new labor laws, AB 5 / AB 2257. On Friday, March 19 we sent a list of questions to the DSC Executive Director, and cc:ed the Department of General Services attorney. These were some of the questions:

  • Did the DSC submit new or renewed contracts with DISB members to the Department of General Services for review in calendar year 2020?
  • If so, did the Department of General Services disapprove the new or renewed contracts with the DISB members?
  • If so, on what grounds were the contracts disapproved?

2021-03-19 Letter to Delta Stewardship Council re DISB contracts

2. March 2021 The DSC Executive Director calls us back on Monday, March 22, 2021 and says that it was the Delta Stewardship Council’s attorney, not DGS, that decided the Delta Stewardship Council couldn’t renew the contracts. She said the routine review was initiated after the new labor law, AB 5, was passed, but the contracts were not discontinued because of AB 5. She said the DSC attorney decided they couldn’t issue new Delta ISB contracts because of the California Constitution. She said “her hands were tied.”

When asked for details about the legal basis, the Executive Director said that the DSC’s counsel, Vera Bezdicek, could explain the legal basis for the decision, but said she couldn’t arrange a call with our attorney.

2021-03-22call re DISB contracts — notes

3. April 2021 On April 5 we also get an email response that makes vague hand-waving references to Article VII, section 4 of the state Constitution and CalHR guidelines for exempt employees.

2021-04-05 RE_ Questions regarding contracts for scientific review by Delta Independent Science Board members

4. May 2021 We discover (via public records act request) that Delta Stewardship Council’s own contract administrator didn’t seem to be getting the real story on why the contracts were stopped. On May 3, our attorney, Gwynne Pratt, sends a formal request to the DSC Executive Director, requesting that she provide “the legal basis on which she relied” in instructing the Department of General Services to send back the contracts. 

2021-05-03 California Water Research Inquiry to Pearson re instruction to DGS

5. May 2021 On May 7, 2021, the DSC Executive Director responds, saying she had already answered the question.  She attaches her April 5, 2021 response to the email.

2021-05-07 email RE_ Inquiry regarding Delta Independent Science Board contracts

6. May 2021 We raise the issue of there not being a written legal opinion at the May 24, 2021 Delta Stewardship Council meeting. Council member Don Nottoli states

Is there — you know, maybe there’s been a previous report to get even prior to my being seated on the Council that laid out the pathways, because I don’t think it all falls to the Executive Director, very frankly. 

7. June 2021  On June 28, 2021, the Assembly Water Parks and Wildlife Committee publishes an analysis of Senate Bill 821. The bill analysis states

After the Natural Resources Agency reexamined the question of whether members of the DISB were “independent contractors” or “employees” in summer 2020, the Natural Resources Agency concluded that members of the DISB are, indeed, “employees” of the state.  
But the Delta Stewardship Council staff started the request to the California Department of Human Resources to create employee positions on April 17, 2020, and the DISB contracts were removed from active status as of the DSC’s April 30, 2020 quarterly contract report.

Related posts:

“No legal basis” for 90% pay reduction for Delta Independent Science Board members